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Law in the Internet Society
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Corrupting the Youth: KOSA and Greek Philosophy-- By MichaelMacKay - 11 Jan 2025One Poet, Two GreeksIn Aristotle’s Poetics, why is Homer a poet but not Empedocles? Both Greeks’ works are composed entirely of hexameter verse, but for Aristotle, poetry does not turn on prosody alone.[1] Rather, Empedocles is a philosopher,[2] and today, that distinction—despite apparent similarities—is increasingly relevant facing a new regime of online censorship, as the Kids Online Safety Act (KOSA) threatens to ratchet up minors' surveillance and mistake measurement for meaning. Put differently, rooting out all the “harms” under KOSA by its duty of care is like rounding up all the poets in Poetics by dactyl. Meter is easy to measure, but what can be counted most easily does not necessarily count the most. What survives of Poetics is approximately 8,933 Attic Greek words, resulting in a paperback English edition of 144 pages (7.92 x 5.04″),[3] but quantification confounds real inquiry when words contain multitudes.[4] Aristotle cautions that “[w]e should therefore solve the question [of what something means] by reference to what the poet says himself, or to what is tacitly assumed by a person of intelligence.”[5] Applying statistical models in a top-down manner tends to affix meaning rather than infer meaning from text in context, and by that measure, KOSA’s requirement that platforms monitor patterns of children’s usage and publicly disclose such information appears to treat online expression as univocal—forgetting that “when a word seems to involve some inconsistency of meaning, we should consider how many senses it may bear in the particular passage.”[6] One Flaw, Two BillsIntroduced in 2022, KOSA ironically infantilizes online expression as something to be aggregated and averaged, which overburdens the law’s “duty of care” under Sec. 101(2)(a) (“Prevention of Harm to Minors”) in both House and Senate bills: "A covered platform shall exercise reasonable care in the creation and implementation of any design feature to prevent and mitigate the following harms to minors… [emphasis]” Consider how the bolded portion of KOSA can be read as (1) a single objective genitive noun phrase (effectively, imposing a duty on any design feature that prevents and mitigates harms) or (2) a shorter such phrase followed by an underlined purpose clause (ergo, placing a duty on creating and implementing any design feature, in order that the covered platform may prevent and mitigate harms). The second interpretation likely implicates most changes to UI/UX, whereas the first imposes liability on a smaller subset of features (e.g. a new default setting that automatically changes an app’s color temperature by the hour to curb nighttime usage). Similarly, interpreting the conjunction “and” in “prevent and mitigate” as the logical operator found elsewhere in Sec. 101(3)(IV)(aa) tends to read “mitigate” out of the statute, since prevention exceeds mitigation (thus, both preventing and mitigating harms would exempt some design features that merely mitigate such harms from the “duty of care”). Traditional rules of statutory construction say that such uncharitable interpretations should be avoided,[7] but KOSA’s proposed apparatus for collecting and crunching data is prone to miss such nuance in minors' speech.[8] Critically, nowhere is the mechanical approach to online activity more pernicious than in the Senate amendment on “compulsive usage.” One Amendment, Two CompulsionsIn December 2024, the Senate amended KOSA to soften some “harms” for platforms (e.g. striking “predatory… marketing practices” from Sec. 103) but at the expense of hardening kids’ virtual cages. Previously, in Sec. 101, the bipartisan bill had defined “compulsive usage” as “any response stimulated by external factors that causes an individual to engage in repetitive behavior reasonably likely to cause psychological distress, loss of control, anxiety, or depression.” But now, it is “a persistent and repetitive use of a covered platform that significantly impacts [emphasis] one or more major life activities of an individual, including socializing, sleeping, eating, learning, reading, concentrating, communicating, or working.” How exactly is a “covered platform” to know what genuinely impacts the lives of children under 13?—apparently, through commercial surveillance, because Sec. 102(a) (“Duty of Care”) now says that “covered platforms” must know: “(III) Patterns of use that indicate compulsive usage.” Again, ascertaining such “patterns” implies averaging across millions of minors’ uploaded content and online footprints, so there is no real knowledge as to any one minor’s particular use of "covered platforms" like Discord or Reddit. Blindly, though, firms are required to be intrusive to establish what is “compulsive,” so while Sec. 102(a)(II) (“clinically diagnosable symptoms”) suggests that some doctors may play a role in guiding FTC enforcement, the need for “covered platforms” to ensure compliance under vague parameters of "compulsive" means data collection will likely be exhaustive, as firms err on the side of caution,[9] meaning that minors’ privacy breach is the only real foreseeable harm within the risk.[10] Notably, Meta cannot even automatically flag disturbing content for removal,[11] so increasing platforms’ vigilance against kids’ “compulsive usage” through proprietary algorithms that prove too much will probably lead to more foreign adults watching American kids. Surely, developers can build bigger nets for smaller fish, but some brain development will inevitably be confused for “brainrot” when adults are not in on the joke. Before the amendment, “compulsive usage” under Sec. 101(3) was predicated on external factors “reasonably likely to cause” such compulsion, but they have been replaced by a set of factors that “significantly impacts” kids, where the change from probable to actual knowledge underscores that “covered platforms” will ultimately incur KYC obligations like mandatory age verification to determine who is using their apps and how, as the Electronic Frontier Foundation has predicted.[12] First Amendment, Second ActIn The Age of Surveillance Capitalism, Zuboff recounts the FTC’s $2.2M settlement with Vizio in 2017 after it was discovered that its TVs were essentially watching the family at home.[13] Despite its devices’ “smart interactivity,”[14], it is unclear whether such a company would be liable as a “covered platform” under KOSA, and the ever-expanding IOT complicates KOSA’s paternalistic goals (e.g. should Mattel sell at least 10 million “smart” Barbie dream homes that children play with, why would that not be an “online video game” under Sec. 101(11)?).[15] Assuming arguendo that KOSA is even constitutional under the First Amendment,[16] the next step that the 119th Congress should take is to reconsider KOSA’s policy goals. Recently, social media companies have publicly displayed AI technology communicating with in-app users,[17] so restricting such platforms' use of large language models may be a worthier goal in promoting kids’ well-being without harming their self-expression. After all, statistical models are poor proxies for communicative genius,[18] and where G2 estimated that users made some 550 million posts on Reddit last year alone, there was probably at least one philosophical haiku written by a kid.[19] Endnotes:
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